Repeats, Second Endings, Codas, and Deeds

When we go to a classical music concert, we usually know when the piece is over because the conductor will end with a flourish with several repeating chords, called a cadence. However, there is more than one way the ending to a composition.

In the simplest form, the piece ends at a double bar (two vertical parallel lines across the staff). But sometimes, a double bar isn’t the end. There might be two short segments with double bars, the first will have two dots next to the double bar. That symbolizes a repeat. It means the musician is to find the previous double bar, which also will have two dots next to it, and play that section again.

Some repeats are more complex and have a first ending and a second ending. The first time through the performer plays the first ending. The second time through, the player skips the first ending and plays the second ending comprising different notes.

Other times, a double bar will include the Italian instruction da capo al coda or DC al Coda. Da capo means “from the head/beginning” and instructs the musician to play the piece from the beginning. Instead of playing all the way to the double bar, the musician is to look for a coda sign, a circle with a plus sign over it. Then, the musician is to jump ahead to the next coda sign and play that section.

Sometimes, the music doesn’t end. When the end of a movement of music says “attacca,” the musician does not stop before continuing on to the next movement.

“One size fits all” doesn’t apply to musical endings, and it doesn't apply to deeds either. Several types of deeds may be used to convey real estate. This article discusses the major types of deeds and when to use them.

Deed Forms and Formalities

A Google search will reveal dozens of websites touting deed forms. It’s unnecessary to go to a website like that, because most states have official, statutory deed forms in their code.

Deed forms may look simple. However, an error in preparation of the deed can create title issues for not only the current, but also future, owners of the real estate.

Therefore, an attorney should assist with deed preparation. This both assures that the most appropriate form is used and that the blanks in the form are filled in correctly. That’s why many counties and states require that every deed state the name of the attorney who prepared it.

It’s also important that the deed be properly executed. What’s required varies from state to state. But most states require the grantor (person transferring title) to appear before a notary to acknowledge signing the deed.  Some states also require witnesses.

The grantee's attorney should review for proper execution. However, when the grantee purchases title insurance, the burden to assure the deed is executed properly falls on the title company.

The title company also is responsible for filing the deed with the appropriate government office. The title company also confirms that title is properly recorded in government records. A deed that is properly prepared and executed but not recorded may still convey title, but it won’t be enforceable against third parties who aren’t aware of it.

General Warranty Deed

Until title insurance became popular, most real estate purchasers required a general warranty deed. In a general warranty deed, the grantor “warrants” that the grantor is conveying good title, subject to any exceptions noted in the deed. A grantor who signs a general warranty deed agrees to compensate the grantee for any title defects, even if they predate the grantor’s ownership.

Making the grantor responsible for title defects is less important to buyers today than it used to be.  Now, title insurance companies usually ensure that the buyer is receiving good title. 

Because of this, most grantors don't want to sign a general warranty deed. Since buyers have an acceptable alternative in title insurance, grantors see no reason to warrant title against problems they didn't create.

Special Warranty Deed

A special warranty deed is most common today. In a special warranty deed, the grantor “warrants” there are no title problems arising since the grantor took title.

Unlike a general warranty deed, in a special warranty deed, the grantor does not make any warranties about title defects before the grantor took title. As with a general warranty deed, a special warranty deed may include title exceptions.

Quitclaim Deed

In a quitclaim deed, the grantor provides no warranties. The grantor doesn't even warrant that the grantor owns the real estate. Rather, the quitclaim deed only conveys whatever interest the grantor has in that real estate.

Quitclaim deeds are used frequently when conveying property that isn’t being purchased. For instance, the parties might use a quitclaim deed to resolve a property line dispute. Or, a quitclaim deed might be used in a divorce or business dissolution where the grantee already owns partial title to the real estate. However, a quitclaim deed might also be used when the grantor isn’t willing to warrant title due to a possible title defect.

Other Deed Types

There are other deed types used in some states. For instance, California has a grant deed. A grant deed is similar to a special warranty deed in that it contains only limited warranties but it has fewer warranties of title than a special warranty deed in most other states.  Therefore, it is particularly important to obtain title insurance in California. And in some states allow a method of land recordation known as registered land or Torrens.

Some states use a bargain and sale deed, which resembles a quitclaim deed. Where recognized, a bargain and sale deed might be used when the government conveys land or in foreclosure sales.

A fiduciary transferring real estate out of an estate might use an executor’s deed or administrator’s deed. A sheriff conveying property sold at tax sale might use a tax deed or sheriff’s deed. And a property owner might sign a deed in lieu of foreclosure, thus handing the property over to the mortgage lender after a mortgage default.

Which Deed Should I Use?

Deed forms may look simple. However, just as it isn’t “one size fits all” for music endings, the appropriate deed type will vary with the circumstances.  

In a real estate sale, the purchase contract usually states the type of deed to be used to convey title. Therefore, it is important that both buyers and sellers work with an attorney before a contract is signed. That way they can assure that the type of deed is appropriate for the transaction.

Most parties in a real estate purchase choose a special warranty deed. However, both parties still should have an attorney assist with title exceptions. The title exceptions, or a method for determining them, should be in the contract.

If the buyer purchases title insurance, the deed type is less important. However, the buyer still should have an attorney. Like deeds, title insurance policies usually include title exceptions, which an attorney should review.

© 2019 by Elizabeth A. Whitman 

Any references clients and their legal situations have been modified to protect client confidentiality

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information contained in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless and until a written contract is signed by all parties and any conditions in such contract are fully satisfied.